Ordinance Mandating use of Body Cameras by Boston Police WHEREAS, The Commissioner of the Boston Police Department, Mr. William Evans, stated publicly in January 2014 that the department’s top priority is “building trust” between the local community and Boston’s law enforcement; and WHEREAS, The Community Ombudsman Oversight Panel (CO-OP), established in 2007, found that, according to the most recent data, there were 369 external complaints of misconduct filed against officers of the Boston Police Department in 2013, more than triple the number of external complaints in 2009; and WHEREAS, Police accountability is an important part of the process of reestablishing trust between law enforcement and the community in which they serve; and WHEREAS, Body-camera programs reportedly have been piloted, implemented, or will soon be implemented in major cities throughout the country, including Albuquerque (NM), Charlotte (NC), Chicago (IL), Cleveland (OH), Dallas (TX), Detroit (MI), Indianapolis (IN), Las Vegas (NV), Los Angeles (CA), Memphis (TN), New Orleans (LA), New York (NY), Oakland (CA), Philadelphia (PA), Phoenix (AZ), San Antonio (TX), San Diego (CA), San Jose(CA), and Seattle (WA); and WHEREAS, Police departments that have kept data on their body-camera programs, including those in Mesa (AZ), Oakland (CA), Paulsboro (NJ), Rialto (CA), San Diego (CA), and Buncombe County (NC), have reportedly experienced substantial declines in civilian complaints, useof-force incidents, or both; and WHEREAS, The use of body cameras has been proven to aid police departments in the collection of evidence at accident and crime scenes, encourage civil behavior between an officer and community members, provide useful training tips and tools for the Academy, and prevent frivolous lawsuits which drain the city treasury and the budget of local police departments; and WHEREAS, The city of Boston is committed to being at the forefront of innovation and progress and believes that the nation’s top local law enforcement agency should abide by the best practices and policies which enhance the safety of the police officer as well as improve trust and relations between law enforcement and the community; NOW, THEREFORE BE IT ORDERED That the City of Boston Code be amended by adding the following ordinance: SECTION 1.
The Boston Police Department shall adopt the use of body cameras on police officers to: improve community relations; foster better accountability of its personnel; capture digital audio-video evidence for criminal, civil, and traffic-related court cases; be used as a training tool for officer safety and best practices in the Boston Police Department (BPD); and assist in the assessment of contacts between officers and the public by reviewing procedures and interpersonal actions. All provisions laid out in this rule shall be reflected in all related rules and procedures of the Boston Police Department. This Ordinance is issued to provide Officers and Supervisors with guidelines for the use, management, access, retention, the handling of evidence, storage, and retrieval of recorded media captured by body cameras as well as sanctions for failing to abide by the specified procedures of this Ordinance. SECTION 2. Definitions (1) “Body camera” shall refer to that device which can record both audio and video of an interaction between an Officer and a Civilian (2) “Civilian” shall refer to any person that is not an on-duty police officer. (3) “Officer” shall refer to that which is defined in Rule 103 of the BPD Rules and Procedures. SECTION 3. (a) Only officers with the authority to conduct searches and make arrests shall be permitted to wear a body camera. Such body cameras shall be worn in a location and manner that maximizes the camera’s ability to capture video footage of the officer’s activities. (b) Both the video and audio recording functions of the body camera shall be activated whenever an officer is responding to a call for service or at the initiation of any other law enforcement or investigative encounter between an officer and a member of the public, except that when an immediate threat to the officer’s life or safety makes activating the camera impossible or dangerous, the officer shall activate the camera at the first reasonable opportunity to do so. The body camera shall not be deactivated until the encounter has fully concluded and the officer leaves the scene. (c) An officer who is wearing a body camera shall notify the subject(s) of the recording that they are being recorded by a body camera as close to the inception of the encounter as is reasonably possible. (d) Notwithstanding the requirements of subsection (b): (1) Before entering a private residence without a warrant or in non-exigent circumstances, an officer shall ask the occupant if the occupant wants the officer to discontinue use of the officer’s body camera. If the occupant responds affirmatively, the officer shall immediately discontinue use of the body camera; (2) When interacting with an apparent crime victim, an officer shall, as soon as practicable, ask the apparent crime victim if the apparent crime victim wants the officer to discontinue use of the officer’s body camera. If the apparent crime victim responds affirmatively, the officer shall immediately discontinue use of the body camera; and (3) When interacting with a person seeking to anonymously report a crime or assist in an ongoing law enforcement investigation, an officer shall, as soon as practicable, ask the person seeking to remain anonymous if the person seeking to remain anonymous wants the officer to
discontinue use of the officer’s body camera. If the person seeking to remain anonymous responds affirmatively, the officer shall immediately discontinue use of the body camera. (e) All law enforcement communications regarding the option to discontinue use of a body camera made pursuant to subsection (d), and the responses thereto, shall be recorded by the body camera prior to discontinuing use of the body camera. (f) Body cameras shall be worn openly in a prominent location on the officer’s body, uniform, or clothing. Body cameras shall not be used surreptitiously. (g) Body cameras, as well as other devices that can record audio and video, shall not be used to gather intelligence information based on First Amendment protected speech, associations, or religion, or to record activity that is unrelated to a response to a call for service or a law enforcement or investigative encounter between an officer and a member of the public. (h) Officers shall not activate a body camera while on the grounds of any public, private, charter, or parochial elementary or secondary school, except when responding to an imminent threat to life or health. (i) Body camera video footage shall be retained by the Boston Police Department, or an authorized agent thereof, for six months from the date it was recorded, after which time such footage shall be permanently deleted. (j) Notwithstanding the retention and deletion requirements in subsection (i): (1) Video footage shall be automatically retained for no less than three years if the video footage captures images involving: (A) Any use of force; (B) Events leading up to and including an arrest for a felony-level offense, or events that constitute a felony-level offense; or (C) An encounter about which a complaint has been registered by a subject of the video footage. (2) Body camera video footage shall also be retained for no less than three years if a longer retention period is requested by: (A) The officer whose body camera recorded the video footage, if that officer reasonably asserts the video footage has evidentiary or exculpatory value; (B) Any officer who is a subject of the video footage, if that officer reasonably asserts the video footage has evidentiary or exculpatory value; (C) Any superior officer of an officer whose body camera recorded the video footage or who is a subject of the video footage, if that superior officer reasonably asserts the video footage has evidentiary or exculpatory value; (D) Any officer, if the video footage is being retained solely and exclusively for police training purposes;
(E) Any member of the public who is a subject of the video footage; (F) Any parent or legal guardian of a minor who is a subject of the video footage; or (G) A deceased subject’s next of kin or legally authorized designee. (k) To effectuate subsections (j)(2)(E), (j)(2)(F) and (j)(2)(G), any member of the public who is a subject of video footage, the parent or legal guardian of a minor who is a subject of the video footage, or a deceased subject’s next of kin or legally authorized designee, shall be permitted to review that specific video footage in order to make a determination as to whether they will voluntarily request it be subject to a three-year retention period. (l) The following video footage shall be exempt from the public inspection requirements of the Massachusetts public records law (M.G.L. c.4 s. 7 cl. 26; M.G.L. c.66): (1) Video footage not subject to a minimum three-year retention period pursuant to subsection (j); (2) Video footage that is subject to a minimum three-year retention period solely and exclusively pursuant to subsection (j)(1)(C), where the subject of the video footage making the complaint requests the video footage not be made available to the public; (3) Video footage that is subject to a minimum three-year retention period solely and exclusively pursuant to subsection (j)(2)(A), (j)(2)(B), (j)(2)(C) or (j)(2)(D); and (4) Video footage that is subject to a minimum three-year retention period solely and exclusively pursuant to subsection (j)(2)(E), (j)(2)(F), or (j)(2)(G), where the person making the voluntary request requests the video footage not be made available to the public. (m) Any video footage retained beyond six months solely and exclusively pursuant to subsection (j)(2) (D) shall not be admissible as evidence in any criminal or civil legal or administrative proceeding against a civilian. (n) No officer shall review or receive an accounting of any body camera video footage that is subject to a minimum three-year retention period pursuant to subsection (j)(1) prior to completing any required initial reports, statements and interviews regarding the recorded event. (o) Video footage not subject to a minimum three-year retention period shall not be viewed by any superior officer of an officer whose body camera recorded the footage absent a specific allegation of misconduct, nor shall it be subject to automated analysis or analytics of any kind. (p) Video footage shall not be divulged or used by the Boston Police Department for any commercial or other non-law enforcement purpose. (q) Where the Boston Police Department authorizes a third-party to act as its agent in maintaining body camera footage, the agent shall not be permitted to independently access, view or alter any video footage, except to delete videos as required by law or agency retention policies. (r) Should any officer, employee or agent fail to adhere to the recording or retention requirements contained in this chapter, or intentionally interfere with a body camera’s ability to accurately capture video footage, the following measures shall be adopted:
(1) Disciplinary action shall be taken against the individual officer, employee or agent in the following manner: (A) Failure to wear a body camera while on duty shall result in the use of discipline found in Rule 109, Part II, sec. 32/8/d of the Boston Police Department Rules and Procedures; (B) Failure to properly maintain the body camera during a shift shall result in the use of discipline found in Rule 109, Part II, sec, 32/2/c of the Boston Police Department Rules and Procedures; (C) Failure to keep the body camera on during an interaction with a civilian for which no request for discontinuation is recorded pursuant to subsection (e) shall result in the use of discipline found in Rule 109, Part II, sec. 32/2/f of the Boston Police Department Rules and Procedures; (D) Failure to produce recorded communication regarding the discontinued use of the body camera pursuant to subsection (e) shall result in the use of discipline found in Rule 109, Part II, sec. 32/6 of the Boston Police Department Rules and Procedures; (E) Failure to turn off the body camera when a civilian responds affirmatively to an option to discontinue use pursuant to subsection (d) shall result in the use of discipline found in Rule 109, Part II, sec. 32/13 of the Boston Police Department Rules and Procedures; (F) Disciplinary action equivalent to the disciplinary actions for the offenses listed in Rule 109, Part II, sec. 32/2/f of the Boston Police Department Rules and Procedures shall be taken against an individual officer, employee or agent for otherwise failing to adhere to the requirements of this chapter; (2) A rebuttable evidentiary presumption shall be adopted in favor of criminal defendants who reasonably assert that exculpatory evidence was destroyed or not captured; and (3) A rebuttable evidentiary presumption shall be adopted on behalf of civil plaintiffs suing the Boston Police Department and/or Boston Police Department officers for damages based on police misconduct who reasonably assert that evidence supporting their claim was destroyed or not captured. (s) The disciplinary action requirement and rebuttable presumptions in subsection (r) may be overcome by contrary evidence or proof of exigent circumstances that made compliance impossible. (t) Any body camera video footage recorded in contravention of this or any other applicable law shall be immediately destroyed and shall not be admissible as evidence in any criminal or civil legal or administrative proceeding against a civilian. (u) Nothing in this chapter shall be read to contravene any laws governing the maintenance and destruction of evidence in criminal investigations and prosecutions.
(v) As used this section, “subject of the video footage� means any Boston Police Department officer or any suspect, victim, detainee, conversant, injured party or other similarly situated person who appears on the body camera recording, and shall not include people who only incidentally appear on the recording. SECTION 4. This Ordinance shall take effect [DATE].